Indiana—The Crossroads of America1 —is a railroad capital. Statewide, dozens of railroad companies run trains on more than four thousand miles of track. Roads intersect those tracks, creating 5,693 public railroad—highway grade crossings. That's one for every seventeen public-roadway miles—the highest concentration in the country.2

To aid public travel, the State bars railroads from blocking those crossings for more than ten minutes, except in situations outside the railroads' control. Violations carry minimum $200 fines. After 23 citations, Norfolk Southern challenged the State's regulation as preempted by federal law.

​On September 22, Governor Brown signed SB 1402, a bill that establishes joint and several liability for customers who contract with or use port drayage motor carriers who have unpaid wage, tax and workers’ compensation liability. SB 1402 is effective January 1, 2019.

​The
Federal Maritime Commission today took a significant step forward in relieving
regulatory burdens on Ocean Transportation Intermediaries (OTIs), while
simultaneously giving shippers more choices and flexibility, by moving forward
with a Final Rule that simplifies requirements for using NVOCC Negotiated Rate
Arrangements (NRAs) and NVOCC Service Arrangements (NSAs).​

Brandon
Afoa was severely injured in an accident while working at the Port of Seattle
(Port) for a cargo company. He sued the Port on the theory that it had retained
sufficient control over his work to have a duty to provide him a safe place to
work. Among other things, the Port argued that several airlines that were not
parties to the lawsuit were at fault. A jury found . . .

"Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer has superior opportunity of being a good man. There will still be business enough." – Abraham Lincoln

If Dominic Oliveira has his way, the Supreme Court of the United States may soon encourage costly, full-blown litigation involving even minor contract disputes between trucking companies and the independent contractor truck drivers whose services they engage. The issue before the Supreme Court is whether a trucking company can enforce an arbitration clause in its independent contractor agreement with its driver, or whether such arbitration provisions are unenforceable under the Federal Arbitration Act (FAA). Because arbitration clauses in independent contractor agreements are so common in the trucking industry, this case could have a far-reaching impact on how disputes between drivers and trucking companies are adjudicated.

​The United States District Court for the Northern District of Illinois recently held an insurer has no duty to defend or indemnify a motor carrier in a worker's compensation claim stemming from the death of an employee in a state not listed on the policy in Hartford Underwriters Ins. Co. v. Worldwide Transp. Shipping Co., No. 16 C 2381, 2018 U.S. Dist. LEXIS 43045 (N.D. Ill. Mar. 16, 2018). The Court granted Hartford's summary judgment motion seeking a declaratory judgment against Worldwide.

Worldwide Transportation Company ("Worldwide") is an Iowa trucking company who applied for Iowa's Worker's Compensation Insurance from Hartford Underwriters Insurance Company ("Hartford"), an insurance company exclusively authorized to provide insurance in Iowa. The employee, John Finnegan, died in a workplace accident in McCook, Illinois. Finnegan was an Illinois resident and he performed all his work in Illinois.

Worldwide's application with Hartford listed Iowa as the "majority driving state," it represented it had zero employees, and only mentioned Illinois once regarding long distance hauling. Hartford issued Worldwide a policy for liabilities arising under the Iowa Worker's Compensation Act. The Court's decision came down to an interpretation of the policy's Residual Market Limited Other States Insurance Endorsement ("LOSI").

Hartford argued two of the three requirements of the LOSI were not met by Worldwide in the Finnegan claim, to wit:

b. The employee claiming benefits is not claiming benefits in a state where, at the time of injury, (i) you have other workers compensation insurance coverage, or (ii) you were, by virtue of the nature of your operations in that state, required by that state's law to have obtained separate workers compensation insurance coverage, or (iii) you are an authorized self-insurer or participant in a self-insured group plan; and

c. The duration of the work being performed by the employee claiming benefits in the state for which that employee is claiming benefits is temporary.

Justice Kendall held the second requirement turned on whether Worldwide was required under Illinois statute to purchase separate worker's compensation insurance. Worldwide failed to satisfy this prong because Illinois statute requires the insurance provider to be authorized to operate an insurance business in Illinois, and Hartford was not. Further, Worldwide represented it had no employees until after Finnegan's accident and Finnegan performed 100% of his work in Illinois.

Justice Kendall held Worldwide failed to satisfy the third prong because Finnegan's work in Illinois was not "temporary." As discussed above, Finnegan was an Illinois resident who performed all his work in Illinois. Worldwide argued Finnegan was only an employee for two months when the accident occurred and likely would have worked in Iowa in the future. Justice Kendall found this argument unpersuasive as the possibility of working somewhere other than Illinois does not render Finnegan's work in Illinois "temporary."

The Court also denied Worldwide's affirmative defense of estoppel/waiver. Worldwide argued Hartford's failure to conduct an audit until approximately two months after the policy was issued constituted a waiver. The Court held this would punish Hartford for relying upon the representations made by Worldwide. Insurer's should be allowed to rely upon the information provided by those applying for insurance.

Ultimately, Hartford and other insurers are not required to defend or indemnify an insured for accidents occurring outside the policy's scope. The Northern District of Illinois' ruling is an indication courts will read LOSI's provisions narrowly moving forward. Motor carriers are advised to do their due diligence when applying for insurance or they may find themselves without coverage they thought they had.

C.H. Robinson Company ("CHR") is a transportation broker. Brokers have long contracted with motor carriers as independent contractors. Generally, a broker or any other entity is not responsible for the negligent actions of an independent contractor. However, in Schramm v. Foster, 341 F. Supp. 2d 356 (D. Md. 2004), the District Court allowed a plaintiff's negligent hiring claim to survive summary judgment opening the floodgates to similar claims in personal injury actions throughout the nation. Since that time, lawyers defending brokers have fought vigorously to have these claims dismissed, with mixed results. SeeJones v. C.H. Robinson Worldwide, Inc., 558 F. Supp. 2d 630 (W.D. Va. 2008) (holding a genuine issue of fact existed regarding plaintiff's negligent hiring claim); Sperl v. C.H. Robinson, 946 N.E.2d 463 (Ill. App. 2011) (holding the broker had the right to control the work of the driver); Hayward v. C.H. Robinson, Co., 24 N.E.3d 48 (Ill. App. 2014) (holding broker was only concerned with end result and did not control the driver's methods); Mann v. C. H. Robinson Worldwide, Inc., Civil Action No. 7:16-cv-00102, 2017 U.S. Dist. LEXIS 117503 (W.D. Va. July 27, 2017) (denying CHR's motion for summary judgment on plaintiff's negligent hiring claim).

In Volkova v. C.H. Robinson Company, et. al, Case No. 16-CV-1883, United States District Court for the Northern District of Illinois, Plaintiff brought a wrongful death suit following a collision between a passenger vehicle and a tractor-trailer operated by a driver for Antioch Transport, Inc. ("Antioch"). In addition to suing the truck driver and motor carrier, Plaintiff sued CHR, alleging that as a transportation broker, it negligently hired Antioch. Specifically, Plaintiff asserted that CHR was liable for failing to perform a sufficient investigation and evaluation in hiring Antioch and its driver to transport freight. In support of this claim, Plaintiff alleged CHR failed to inspect any publicly available safety data on Antioch such as BASIC Scores.

On February 7, 2018, District Court Judge Ronald Guzman issued a memorandum opinion and order dismissing Plaintiff's negligent hiring claim against CHR based upon FAAAA preemption. This opinion is a major victory for freight brokers whose liability has been wildly expanded by other courts in recent years. See Mann v. C. H. Robinson Worldwide, Inc.

The relevant FAAAA provision, 49 U.S.C. § 14501(c)(1), provides that "a State…may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier…or any private motor carrier, broker, or freight forwarder with respect to the transportation of property." (emphasis added). Justice Guzman found Plaintiff's Second Amended Complaint demonstrated that the negligent hiring claim was directly related to CHR's core service – hiring motor carriers to transport shipments. Because Plaintiff's negligent hiring claim had a significant economic impact on the services CHR provides, it was preempted.

The Northern District of Illinois is not the first to hold that the FAAAA preempts state law. See Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 133 S. Ct. 1769 (2013). In Dan's City the U.S. Supreme Court held that the FAAAA expressly preempts any state law regarding the price, route, or service of any motor carrier in respect to the transportation of property. The Court further held the FAAAA's use of the phrase "related to" means state laws with both a direct or indirect effect on a motor carrier's transportation of goods are preempted. Justice Guzman relied heavily on the Supreme Court's decision in Dan's City in ruling on Volkova.

Guzman further rejected Plaintiff's argument that because her claim involved a personal injury, rather than property, it should survive preemption. Guzman recognized recent cases, such as Mann v. C.H. Robinson Worldwide, have allowed personal injury claims to survive preemption, but stated those courts have not faithfully followed the preemption analysis established by the Supreme Court. Citing Rowe v. New Hampshire Motor Transportation Association, 552 U.S. 364 (2008), Justice Guzman held the U.S. Supreme Court's preemption analysis does not change because the injury is to a person rather than property. He further rejected Plaintiff's argument that dismissing her negligent hiring claim left her with no remedy as Plaintiff could and was seeking recourse against Antioch and its driver.

Those representing freight brokers and their insurers are advised to intimately familiarize themselves with Volkova v. C.H. Robinson Company and Dan's City Used Cars, Inc. v. Pelkey as both will help provide a defense against negligent hiring claims against brokers.

The federal gas tax, which is not tied to inflation, was last increased in 1993. The current rates are 18.4 cents per gallon for gasoline and 24.4 cents per gallon for diesel. The federal gas tax is primarily used to fund the Highway Trust Fund and Leaking Underground Storage Tank Fund.

However, that soon may change. As President Trump seeks to broker a deal on a new infrastructure bill, the issue of funding the measure has become a topic of discussion, and the federal gas tax is now on the table. Reports indicate Trump is willing to entertain an increase as large as 50 cents per gallon. President Obama suggested taxing crude oil at $10-barrel during his administration but was unsuccessful. This time the suggestion may become a reality.

​While President Trump is open to an increase, the GOP is split. Conservative groups, such as the Americans for Prosperity and Freedom Partners, oppose the measure claiming it disproportionately impacts lower income individuals. Other Republicans, such as Senator Mike Rounds of South Dakota, are "still open to it." The U.S. Chamber of Commerce, America's largest business lobby, is proposing its own 25 cent increase to the federal gas tax.

As Republicans and Democrats continue to duke it out over funding the government the transportation industry must stay on high alert. Those in the industry would be best to start discussing and planning for the effects of an increase now to avoid being caught off guard in the coming months.

The European Court of Justice (“ECJ”) recently ruled that Uber, the ride-hailing software application, is officially a transport company and not a digital service. Uber argued it was a software service because it merely helps people connect through its application. In the ruling, the ECJ said this process made Uber a “service in the field of transport” under European Union law. While Uber says the ruling will not affect the way it operates in Europe, some say this could hinder the online economy. As a transportation service, Uber will be subject to various regulations and laws governing the transport industry, while other software companies will not. This ruling applies only to the European Union and does not give any indication of Uber’s company classification in other areas.

​Beginning on January 1, 2018, the Federal Motor Carrier Safety Administration (FMCSA) will add opioids to its five-panel drug test. The added drugs in the tests will be the synthetic opioid drugs hydrocodone, hydromorphone, oxycodone, and oxymorphone. These drugs are Schedule II controlled substances known by the names Vicodin, OxyContin, Lortab, and Norco, along with other names. FMCSA will be adding these drugs to a new panel of “opioids,” replacing the current panel name of “opiates.”

These changes are made to harmonize the FMCSA’s drug testing with the U.S. Department of Health and Human Services’ Mandatory Guidelines for Federal Workplace Drug Testing Programs. FMCSA-regulated companies are advised to change their drug and alcohol testing policies to reflect these changes on Jan​. 1, 2018. The rule was published in the Federal Register on Nov. 13, 2017.

​The National Transportation Safety Board, for the first time, is investigating a collision that occurred between a civilian operated drone and an aircraft. The aircraft, an Army helicopter, collided with a DJI Phantom 4 drone on September 21 in New York. The helicopter was able to land safely, but its main rotor, window, and transmission deck were damaged. The drone was recovered from the helicopter. The crash occurred around 500 feet in the air, 100 feet higher than the 400 foot ceiling for drone hobbyists.

Both the NTSB and the Army are investigating the crash. DJI, the manufacturer of the drone in question, announced its intent to help with the investigation. Information is coming from air traffic control data, flight data of the helicopter, and flight logs of the drone operator. The Army concluded the collision was not a targeted attack and was only the result of use by a hobbyist.

Recently, the FAA has issued a ban on flying drones over 400 feet in the air near landmarks in cities and has banned drone flight over 133 U.S. military facilities. This crash comes at a time when a law requiring drone registration was recently struck down and where President Trump continues to promote drone usage, including allowing them for delivery purposes and to fly beyond the eyesight of an operator.

The U.S. Food & Drug Administration (FDA) recently launched a new one-hour training program to help carriers comply with the Sanitary Transportation of Human and Animal Food Rule, also known as the Sanitary Transportation Rule. This FDA rule requires carriers to provide food safety training when the shipper and carrier agree in a contract that the carrier is responsible for sanitary conditions during the shipping.

Carriers may use this program to satisfy they minimum requirements under the rule or may use the program as a supplement to their own training. The program is not required and may be used as an additional resource to carriers offering their own training or receiving training from a third-party. The course is designed to help carrier personnel identify potential food safety problems and give information on basic sanitary practices and carrier responsibilities relating to the Sanitary Transportation Rule.

The Commercial Vehicle Safety Alliance (CVSA) announced today that although it will begin enforcing the electronic logging device (ELD) requirement on December 18 of this year, the out-of-service (OOSC) criteria for non-compliance will not go into effect until April 1 of next year. The CVSA press release states, in part, as follows:

"The Federal Motor Carrier Safety Administration's (FMCSA) congressionally mandated ELD compliance deadline is still set for Dec. 18, 2017. On that date, inspectors and roadside enforcement personnel will begin documenting violations on roadside inspection reports and, at the jurisdiction's discretion, will issue citations to commercial motor vehicle drivers operating vehicles without a compliant ELD. Beginning April 1, 2018, inspectors will start placing commercial motor vehicle drivers out of service if their vehicle is not equipped with the required device."

​Of course, a carrier may still be placed out-of-service for other hours-of-service violations.

A giant among us has fallen. Jim Hardman died on August 8, 2017 in Minnesota. Jim spent his formative years as a young lawyer representing motor carriers in contested administrative proceedings before the Interstate Commerce Commission, where he earned a reputation as a vigorous advocate for his clients and a staunch defender of trucking regulation. He was very active in the Transportation Lawyers Association (then known as the Motor Carrier Lawyers Association) from the very beginning of his career, giving presentations at seminars, writing papers and serving on planning committees.

Jim served as an officer of the organization from 1973 to 1980. When his tenure began there was little serious attention given to the topic of "deregulation" but by the time he assumed the presidency it was an accomplished fact. Jim's year as president was perhaps the most tumultuous in the history of the organization.

We have Jim to thank for the fact that this organization exists today. His steadfast leadership was pivotal factor in convincing many of us that deregulation was not the end of the world. His keen sense of vision foretold of a future transportation lawyer with many diverse legal skills and a fundamental understanding of the industry he serves. Many others helped steer the ship into safe waters, but Jim was the captain when it struck the iceberg.

After his presidency Jim accepted a position as chief counsel for Dart Transit Company, in St. Paul, Minnesota, where he indulged in one of his greatest passions, defending and advocating for the owner-operator independent contractor model. He displayed his diverse skills as an attorney and an issue advocate not only on independent contractor issues but also other issues such as truck lengths. Everywhere you look in today's motor carrier industry you see tangible evidence of Jimi's numerous and lasting contributions.

Jim was a prolific author of legal articles for The Transportation Lawyer, the Transportation Law Journal, and other legal publications, and was a frequent speaker at TLA events. He remained active in the organization over nearly 40 years following his presidency, and served as a sounding board for those of us who followed him in TLA leadership roles. He was a deserving recipient of the TLA Distinguished Service Award and the Lifetime Achievement Award.

Many of us have fond memories of Jim as a personal friend. He was a delightful conversationalist and a generous host. On Saturday afternoons in the fall he could be seen donned in various shades of purple, reflecting his passion for his beloved Northwestern Wildcats, whether at Ryan Field in Evanston, Illinois or at various Big Ten venues and bowl games. He knew how to enjoy life and bring joy to anyone who spent time with him.

The Federal Motor Carrier Safety Administration (FMCSA) and Federal Railroad Administration (FRA) recently withdrew an advanced notice of proposed rulemaking regarding obstructive sleep apnea (OSA). In a notice published in the August 4, 2017 Federal Register, the agencies stated they believe that current safety programs are appropriate and effective in addressing the hazards of OSA. Current regulations, still in effect, leave evaluation to the discretion of the examiner.

The FMCSA Medical Review Board, in an August 2016 recommendation, proposed guidelines for identifying drivers with OSA. The FMSCA will consider updating the “Bulletin to Medical Examiners and Training Organizations Regarding Obstructive Sleep Apnea.” A University of California, San Francisco study found 41 percent of CMV drivers may have OSA. The American Sleep Apnea Association estimates around 22 million people in the US have sleep apnea and 80 percent OSA remain undiagnosed.

​The United States Supreme Court recently denied review of a ruling from the Seventh Circuit Court of Appeals regarding the FMCSA's electronic logging device ("ELD") mandate. Owner-Operator Indep. Drivers Ass'n v. United States DOT, 840 F.3d 879 (7th Cir. 2016). The mandate requires drivers to have ELDs to track their work and hours driving. The devices track both driving and non-driving activities. The Owner-Operator Independent Drivers Association (OOIDA) claimed the mandate is the equivalent of warrantless surveillance of truckers in violation of the Fourth Amendment. OOIDA also questioned the technical specifications of the devices and the enforcement of the regulation. Groups in support of the ELD mandate included safety advocates, the American Trucking Association and large motor carriers, who say the measure is designed to assist in complying with federal hours of service rules.

OOIDA reports that it will continue lobbying Congress through its "Knock Out Bad Regs" campaign as well as working with the Federal Motor Carrier Safety Administration. OOIDA argues that the requirement does not ensure safety, but instead operates as an invasion of the privacy and rights of drivers. Currently, over 500,000 commercial motor vehicles are equipped with ELDs and the market is a $1 billion industry.

​Uber Technologies has announced that it is entering the trucking industry with its new venture, Uber Freight. Launched on May 18, 2017, this app aims to match small carriers with small companies to handle trucking transportation needs. Uber previously acquired Otto in a $680 million deal for the autonomous truck driving tech company. In a trend described as the "Uberization of trucking," Uber Freight joins other automated freight match companies including Transfix, Convoy, and Trucker Path's Truckloads. Uber holds a freight broker license and screens carriers in the same way as a traditional broker. Uber Freight focused efforts in Texas for the launch and is currently available nationwide.

Uber plans to move freight in a fashion similar to its Uber ride-hailing app with surge pricing around peak demand times.

​Congress enacted the Airline Deregulation Act in 1978 to deregulate the domestic airline industry. The law prohibits states from enforcing laws "related to a price, route, or service of an air carrier." 49 U.S.C. § 41713(b)(1) (2012). In American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995), the Court held that states may not impose rules regarding fares, routes, or services, but may allow remedies for breaches of obligations the airlines took, even when the breach is related to fares, routes, or services. Further, the Supreme Court in Northwest, Inc.v. Ginsberg, 134 S. Ct. 1422 (2014) identified the differences between voluntary contracts and obligations imposed by state law.

In Hickox-Huffman v. U.S. Airways, Inc., No. 11-16305, 2017 U.S. App. Lexis 7847, 2017 WL 1658487 (9th Cir. Cal. May 3, 2017), the Ninth Circuit held the agreement between the plaintiff and defendant was a routine offer and contract that the airline voluntarily undertook to deliver the plaintiff's bag when she landed. Plaintiff's bag was delayed one day and she sought recovery for the baggage fee of $15 she paid the airline. As a voluntarily assumed contract, state remedies for a breach of contract claim are "not preempted by the Airline Deregulation Act." Hickox-Huffman, 2017 WL 1658487, at *5. The case has been reversed and remanded and the question of class certification has not been answered. Parties should also look to the Department of Transportation for recent regulations on domestic baggage liability with different effects for lost baggage. Analysis will also be different in international law under the Montreal Convention.

In an announcement to be published in the Federal Register for March 23, U.S.DOT's Federal Motor Carrier Safety Administration (FMCSA or the Agency) is withdrawing a proposed rulemaking that, as most TLA members know, would have made radical changes in how FMCSA determines whether a bus or trucking company's operations are sufficiently "safe" for it to remain in business.

The Agency's so-called "Safety Fitness Determination" (SFD) proposal was issued in January 2016. The proposed SFD methodology, however, was of older vintage. It was based on a "Safety Measurement System" (SMS) that had been adopted by FMCSA in 2010 without rulemaking. Although SMS was promoted by the Agency as a superior alternative to the "official" system of safety ratings under 49 CFR Part 385, numerous stakeholders have been challenging SMS as statistically and legally flawed since its inception. The multi-pronged attack on SMS has included judicial proceedings, agency comments and Congressional testimony.​

The challenges to SMS culminated in December 2015, when Congress added provisions to the FAST Act requiring the National Academies of Science to consider and report on the need for reform of SMS methodology. When the FAST Act did not deter the Agency from repackaging SMS into the SFD rulemaking only a month later, industry groups began efforts on Capitol Hill to de-fund the rulemaking. Support for these efforts expanded rapidly throughout 2016. Ultimately, 62 motor carrier trade associations (now including the American Trucking Associations) signed a letter to new U.S.DOT Secretary Elaine Chao on February 15, 2017, urging that the SFD proposal be withdrawn. Its withdrawal marks the most significant setback for SMS/SFD methodology since its launch in 2010.

It remains to be seen whether FMCSA (now operating under an acting Administrator) will open a new rulemaking on motor carrier safety determinations after the National Academies release the report required under the FAST Act. The report is expected in June 2017. In the meantime, if you need further background or detail on the SFD withdrawal announcement, please do not hesitate to contact either co-chair of TLA's Committee on Federal Legislation, Agency Practice and Security (FLAPS). They are Mark Andrews (mark.andrews@strasburger.com ) and Hank Seaton (heseaton@aol.com ).

On January 31, 2017, a Southern District of Florida federal judge held that damages arising from an intrastate shipment are preempted by FAAAA and that preemption supports removal to federal court. Plaintiff filed its complaint against UPS in state court, alleging a negligence claim related to UPS's handling of plaintiff's cryopreserved embryos. In response, UPS removed to federal court. The federal judge denied plaintiff's motion to remand, finding that plaintiff's state law claim against UPS is preempted under FAAAA because the handling of the embryos during their movement across Florida is related to the "price, route or service" of UPS's transportation of those items.

​As you may recall, the Unified Registration System (URS) was adopted by a "final rule" in 2013, but has never been officially activated for anyone except new registrants at the Federal Motor Carrier Safety Administration (FMCSA). After three postponements of the effective date for existing registrants because of chronic IT problems with this mandatory on-line filing system, FMCSA announced on Friday, January 13 that it has "suspended" efforts to impose URS on the rest of the industry. TLA's Committee on Federal Regulation, Agency Practice and Security (FLAPS), among others, has been expressing concern to FMCSA for years that this program is neither user-friendly nor consistent with the Agency's substantive regulations regarding such matters as hazmat insurance requirements, process agent filings and the like.

If you have specific questions or wish to see the text of the "suspension" announcement, please contact either of the FLAPS co-chairs. They are Mark Andrews (mark.andrews@strasburger.com ) and Hank Seaton (heseaton@aol.com ).

CLARIFICATION: Please note that the requirement for new registrants to make their FMCSA filings on-line (using URS) does remain in place, despite the "suspension" of URS for existing registrants.​

As most TLA members know, the Unified Registration System or URS is an on-line filing process which eventually will be the only available format for doing most types of business with the Federal Motor Carrier Safety Administration or FMCSA. Currently, the on-line "URS Wizard" must be used by any first-time applicant for registration with FMCSA, while "legacy" non-URS application forms must still be used by anyone already regulated by the Agency.

On Friday afternoon, December 9, 2016, FMCSA announced a third indefinite postponement of the date on which existing registrants will have start using the "Wizard." Please recall that the legislative mandate for creating a unified registration system dates back to the ICC Termination Act of 1995. Eighteen years later, a "final rule" adopting URS was published on August 22, 2013, and initially was to take effect for all registrants on October 23, 2015. In a first postponement announced in late 2015, that effective date was pushed back to September 30, 2016, for all but new registrants. A second postponement was announced this past summer, putting off the compliance date for existing registrants until April 14, 2017.

Last Friday's announcement indicated that a new effective date for existing registrants will be published in early January 2017. As in the past, the Agency explains the additional delay as necessary to "securely migrate data from multiple legacy platforms into a new central database and to conduct further compatibility testing with its State partners."

Until the new effective date (whatever it is), the status quo will remain in place under which new registrants must use the "Wizard" while all others must use legacy forms for additional authority applications, MCS-150 updates, name changes and other Agency business. For further information, please feel free to contact either co-chair of TLA's Committee on Federal Legislation, Agency Practice and Security (FLAPS). The co-chairs are Hank Seaton (heseaton@aol.com ) and Mark Andrews (mark.andrews@strasburger.com ).

​On September 17, 2016, transportation industry leader Duane Acklie of Lincoln, Nebraska passed away at the age of 85. Before serving as Chairman of Crete Carrier Corporation, he engaged in private practice as a motor carrier lawyer and member of TLA. He served on many boards including the American Trucking Associations board where he was elected Chairman. He was active in his community and a philanthropist throughout his life.'

On November 22, 2016, the U.S. District Court, Eastern District of Texas, granted a preliminary injunction to block the Department of Labor's implementation of the Fair Labor Standards Act (FLSA) new overtime rule. Twenty-one states and over 50 business organizations filed the lawsuit to challenge the new rule to increase the minimum salary level for exempt administrative employees from $455 per week ($23,660 annually) to $921 per week ($47,892 annually). The new rule was to become effective December 1, 2016. Finding that the plaintiffs satisfied all prerequisites for a nationwide injunction, the court ruled that the "[t]he State Plaintiffs' have established a prima facie case that the Department's salary level under the Final Rule and the automatic updating mechanism are without statutory authority."

In Fox v. TransAm Leasing, Inc., filed October 18, 2016, the U.S. Tenth Circuit Court of Appeals found that the defendant motor carrier violated the DOT's truth-in-leasing regulations by requiring the plaintiff truckers, who lease their trucks and driving services to the motor carrier, to pay the carrier $15 each week to use the carrier's satellite communications system. The applicable regulation, 49 C.F.R. sec. 376.12, precludes a motor carrier from requiring a trucker "to purchase or rent any products, equipment, or services from the authorized carrier as a condition of entering into the lease arrangement." The Court affirmed partial summary judgment for the truckers, upholding the district court's determination that the carrier violated the regulation. That ruling supports the truckers' requests for injunctive and declaratory relief. Because the truckers failed to present any evidence of their damages resulting from the usage fee, the Court reversed the district court's decision to deny the carrier's summary judgment on the truckers' claim for damages.

In Henry Ortiz v. Werner Enterprises, Inc., filed August 19, 2016, the U.S. Seventh Circuit Court of Appeals found in favor of Henry Ortiz, reversing the district court's summary judgment in favor of Werner Enterprises, Inc., in an employment discrimination case. Ortiz worked as a freight broker for Werner for seven years until his discharge in 2012. Werner claimed that it fired Ortiz for falsifying business records. Ortiz claimed that Werner fired him because of his Mexican ethnicity, after being subjected to ethnic slurs in the workplace throughout his tenure at Werner ("beaner," "taco eater," "dumb Mexican," "Puerto Rican," etc.). In reversing the summary judgment, the Court noted that the sole question that matters is "[w]hether a reasonable juror could conclude that Ortiz would have kept his job if he had a different ethnicity, and everything else stayed the same." The Court found, among other things, that a reasonable juror could infer that Ortiz's branch managers "didn't much like Hispanics…" and "tried to force him out the door." As a result, the Court held that a trial was necessary. Notably, the Court in its opinion overruled two lines of cases, those that treated "convincing mosaic" as a legal requirement, and those that used the direct-and-indirect framework, when deciding employment discrimination cases.

​On July 20, 2016, The Federal Motor Carrier Safety Administration (FMCSA) announced that it extended the dates for Unified Registration System (URS) compliance by motor carriers, freight forwarders, brokers, and others under FMCSA jurisdiction. The FMCSA will be releasing the URS on January 14, 2017, with a full compliance date of April 14, 2017. URS is a mandatory on-line filing system that currently applies only to new applicants. The postponement just announced delays the requirement for tens of thousands of existing registrants to use this system. TLA's Committee on Federal Legislation, Agency Practice and Security, co-chaired by Mark Andrews and Hank Seaton, has been active in advocating changes to, and monitoring the status of, URS implementation on behalf of the TLA membership.

In Williams v. JB Hunt, filed on June 20, 2016, the U.S. Fifth Circuit Court of Appeals found in favor of J.B.Hunt where it terminated a driver after one doctor rescinded his DOT medical certification for a diagnosis of syncope and ventricular tachycardia. Although the driver received conflicting medical evaluations from different doctors, he never filed an application for the DOT to resolve the conflict pursuant to 49 C.F.R. §391.47. After his termination, the driver filed a lawsuit alleging that he was terminated in violation of the ADA. The federal district court dismissed the case based on the driver's failure to exhaust administrative remedies. On appeal, the Fifth Circuit held that to prove an ADA violation, plaintiff must make out a prima facie case of discrimination by showing: (1) plaintiff has a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment action. The Fifth Circuit Court affirmed the lower court, but not for lack of subject matter jurisdiction. Instead, the Court affirmed on alternative grounds, concluding that the driver failed to establish that he was qualified for the job in question.

The
Supreme Court of Florida has ruled that the state DOT cannot escape its
contractual indemnity obligations under a contract entered into by the DOT with
private rail line CSX Transportation Inc. A fatal accident on a CSX railroad
invoked an indemnity clause in a contract entered into by each company’s
predecessor.As compensation for land
use, the contract required the DOT to indemnify CSX in the case of liability. Such an event occurred, triggering the clause.
The DOT attempted to escape payment, citing Florida State statutes calling for
sovereign immunity, and claiming that the State Road Department did not
maintain the authority to enter into such an indemnity agreement, thus
rendering the clause unenforceable.Regarding the authority issue, the DOT argued that such statutes must
grant the agencies express authority to include provisions such as indemnity
agreements, and statutes at the relevant time did not. The Florida court
disagreed, stating “when the State is statutorily authorized to enter into a
contract, that authority includes the obligations necessary to fulfill the
terms of that contract.” Effectively, where the authority exists to enter into
a contract, clauses such as indemnity clauses are also authorized. As such, the
DOT cannot escape fulfilling its indemnity obligations as the clause was deemed
enforceable by the Florida Supreme Court.​

​The FDA announced that the Food Safety Modernization Act (FSMA) rule on
Sanitary Transportation of Human and Animal Food is now final.The goal of this rule is to prevent practices
during transportation that create food safety risks, such as failure to
properly refrigerate food, inadequate cleaning of vehicles between loads, and
failure to properly protect food.The
rule establishes requirements for all participants in the motor and rail
transportation of human and animal food, requiring the use of sanitary
practices to ensure the safety of that food. The comprehensive rules govern the
transportation equipment, as well as the operations, records, and training of
the shippers, receivers, loaders and carriers who transport food in the United
States, whether or not the food is offered for or enters interstate commerce.The requirements do not apply to
transportation by ship or air because of limitations in the law.The earliest compliance dates for some companies
begin one year after publication of the final rule in the Federal
Register.

​The Federal Motor Carrier Safety Administration denied an application from the American Trucking Associations made on March 28, 2016 seeking an exemption from the 14-hour “driving window” limit for drivers who work at oil and natural gas extraction sites. The ATA attempted to create an exemption by excluding the time that drivers wait for cargo to be loaded and unloaded as “on duty” time. The theory being that they could log that time as rest time or “off-duty” time, thus extending the 14-hour on-duty window. The FMCSA, however, denied the ATA's application, concluding that the group "did not demonstrate how the commercial motor vehicle operations under such an exemption would achieve a level of safety equivalent to or greater than the level of safety obtained in the absence of the exemption." The agency further indicated that fatigue would increase under such an exemption, thereby increasing danger, not alleviating it. Other advocacy groups including the Advocates for Highway and Auto Safety weighed in, stating "The ATA's arguments rely on what appears to be deliberate ignorance of regulatory history and a fundamental misrepresentation of agency findings in a thinly veiled attempt to circumvent the agency's prior unambiguous determination that the drivers for which the ATA is seeking this exemption should specifically not be afforded this exemption."

On March 25, 2016, the United States Department of Transportation announced a new series of regulations covering “reverse logistics.” These new regulations are aimed at addressing the return transportation of hazardous materials. Under the new regulations, reverse logistics is now defined as “the process of offering for transport or transporting by motor vehicle goods from a retail store for return to its manufacturer, supplier or distribution facility for the purpose of capturing value — e.g. to receive manufacturer’s credit — recall, replacement, recycling or similar reason.” The DOT was alerted by various non-profit associations about the blind spot in hazardous waste transportation almost a decade ago, and these new regulations are the result of efforts to address the problem. The agency released a statement, saying in part "[i]n order to reduce undeclared, misdeclared or improperly packaged hazmat from being offered and transported in commerce, we are amending the HMR to better address the reverse logistics supply chain." "Specifically, we are seeking to ensure retail employers properly identify hazardous materials in the reverse logistics chain and ensure that their employees have clear instructions to safely offer such shipments." Included in the new regulations are specific rules relating to things such as package sizes and battery shipments.

On March 3, 2016, the Florida Supreme Court issued a
decision contradicting many Carmack Amendment preemption cases. The Court denied UPS's motion to dismiss
non-Carmack claims alleging Conversion, Profiting by Criminal Activity,
Unauthorized Publication of Name or Likeness, and a claim under Florida's
Deceptive and Unfair Trade Practices Act.
The claims arose after UPS delivered an empty package that had contained
two paintings shipped by an artist. At
some point, UPS located the paintings and sold them to its lost goods vendor
which auctioned them off. The buyer at the auction notified the shipper/artist
of the purchase. UPS moved to dismiss all claims, arguing preemption under the
Carmack Amendment. The trial court granted its motion and dismissed the case.
The Fourth District Court of Appeals affirmed the trial court's final order of
dismissal but certified the conflict "[t]o the extent [its] opinion
conflicts with the Fifth District's decision in Braid Sales." Plaintiff
filed a notice with the Supreme Court to invoke its discretionary jurisdiction
to review the Fourth District's decision. The Supreme Court reversed, finding
that the plaintiff's claims of a pattern of criminal activity by UPS are separate
and apart from a cargo loss occurring during the shipping process. The Supreme
Court found that the "allegations illustrate a course of criminal conduct
by UPS and its cohorts that bears, at best, only a tangential relationship to
the interstate shipment process and, more specifically, a carrier's contractual
obligation to transport goods.”​​

​The First Circuit Court of Appeals recently ruled that an element of the Massachusetts state law for determining employee versus contractor status was preempted by federal law, while simultaneously reviving a suit against FedEx based upon that very statute. The First Circuit ruled that the lower court was correct in ruling that prong two of the three prong test in the Massachusetts law was preempted by the FAAAA, but that the court erred in dismissing the entire case based upon that finding. The District Court was instructed to determine whether the first and third prongs of the test could still sway a ruling one direction or another.“It would seem that [Massachusetts Independent contractor/Misclassification Law] without Prong 2 still provides as much (or more) protection against misclassification than does Massachusetts law without Massachusetts Independent Contractor/Misclassification Law altogether,” the court said. “We therefore think that the Legislature's plain aim in enacting this statute favors two-thirds of this loaf over no loaf at all as applied to motor carriers with respect to the transportation of property.” The case has been sent back to the District Court for further litigation.

The case is Clayton Schwann et al. v. Fedex Ground Package System Inc., case number 15-1214, in the U.S. Court of Appeals for the First Circuit.​

​A provision of the newly enacted highway legislation, Fixing America’s Surface Transportation Act or “FAST,” required the FMSCA to review its CSA program and, during that review period, remove scores from public view. Accordingly, as of December 4, 2015, the information previously available on the FMCSA’s website related to property carriers’ compliance and safety performance was no longer displayed publicly. While the agency is not prohibited from displaying all of the data, no information will be available for property carriers while appropriate changes are made. The FMCSA has been working to restore the data that is allowed to remain publicly available. A note on the FMCSA’s website explains, “While the agency is not prohibited from displaying all of the data, no information will be available for property carriers while appropriate changes are made.” In order for the CSA ranking system to become live again, the FMCSA would have to implement or satisfactorily address the numerous issues raised regarding the program in the Inspector General report.

In a dispute over gate usage at Love Field airport, outside of the city of Dallas, on January 8, 2016, a Texas federal judge ruled that Southwest Airlines Co. cannot force Delta Airlines Inc. out of the airfield, also ruling that Southwest has breached its lease agreement by refusing to accommodate Delta. In an intricate dispute involving FAA investigations and multiple complaints launched against and by the parties involved, U.S. District Court Judge Ed Kinkeade granted preliminary injunction to Delta to stop Southwest from interfering with Delta’s use of gates at the airport that are currently under Southwest control. At the heart of the matter is a dispute over the level of control Southwest has over 18 of the airport’s 20 gates pursuant to a lease agreement between Southwest and the city of Dallas. Judge Kinkeade wrote “Delta has established that immediate and irreparable harm may result if it is prohibited from operating its current schedule of five flights and is forced out of Love Field during the pendency of this case,” “Thousands of passengers, both traveling to and from Love Field, would have to be refunded or rebooked if Delta is forced to discontinue its service at Love Field. Loss of business and goodwill are immeasurable through money damages.”

The case is Dallas v. Delta Airlines Inc. et al., case number 3:15-cv-02069, in the U.S. District Court for the Northern District of Texas, available through PACER.​​

A class of California truck drivers has asked a federal judge to grant final approval of $1.2M in attorney’s fees as part of a larger $3.5M settlement in a suit brought by drivers for Ruan Logistics Corp. Ruan was sued for a number of different violations of California employment law, including failure to provide meal and rest breaks as well as failure to pay drivers for time worked. Ruan had originally been granted summary judgement in 2013, but that decision was overruled on appeal to the Ninth Circuit, and has since been in intense litigation leading to the current settlement now before the court. Despite the contentious nature of the litigation, the parties have agreed on this settlement, saying in the motion for settlement approval “It is the ‘gold standard’ for wage and hour class action settlements because it imposes almost no burden on the employee while distributing virtually all of the settleme​nt fund,” “This result is particularly impressive in light of the contentious yet professional character of this litigation.”

The case is Burnham et al. v. Ruan Transportation, case number 8:12-cv-00688, in the U.S. District Court for the Central District of California.​